Citation Nr: 0105836
Decision Date: 02/27/01 Archive Date: 03/02/01
DOCKET NO. 00-03 127 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Buffalo,
New York
THE ISSUE
The propriety of the initial 30 percent rating assigned for
service-connected post-traumatic stress disorder (PTSD).
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
M. McBrine, Associate Counsel
INTRODUCTION
The veteran served on active duty from February 1967 to
November 1968.
This matter came before the Board of Veterans' Appeals
(Board) from a July 1999 decision by the Department of
Veterans Affairs (VA) Regional Office (RO) in Buffalo, New
York, which established service connection for PTSD, and
assigned an initial 30 percent evaluation, effective February
19, 1999. As the veteran has perfected an appeal on the
initial evaluation assigned following the grant of service
connection, in light of the distinction noted by the United
States Court of Appeals for Veterans Claims (formerly, the
United States Court of Veterans Appeals) (Court) in the
recently-issued case Fenderson v. West, 12 Vet. App. 119
(1999), the Board has recharacterized the issue as one
involving the propriety of the initial evaluation assigned.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
resolution of the veteran's claim for an increased initial
evaluation for service-connected PTSD has been obtained by
the RO.
2. Since the February 1999 effective date of the grant of
service connection, the veteran's PTSD has primarily
resulted in sleep disturbances, hypervigilance,
irritability, anxiety, depression, emotional numbing and
constricted affect, some suicidal thought without action,
and some impairment in insight and judgment. The veteran
has also been prescribed medication to help him sleep.
CONCLUSION OF LAW
With resolution of all reasonable doubt in the veteran's
favor, the criteria for an initial evaluation of 50 percent,
but no more, for the veteran's service-connected PTSD have
been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R.
§§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Code
9411 (2000).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Background
The veteran and his representative contend that an increased
initial evaluation is warranted for the veteran's service
connected PTSD. A review of the record reflects that service
connection was established for PTSD by the currently appealed
July 1999 decision. This decision was based on evidence that
demonstrated that the veteran served in Vietnam and was
awarded the Bronze Star medal and the Purple Heart. This
decision was also based on medical evidence that will be
discussed below, and based on this evidence, a disability
evaluation of 30 percent was assigned for this disorder,
effective from February 19, 1999, the date of the claim. See
38 C.F.R. § 3.400 (2000).
The relevant evidence of record pertaining to evaluation of
the severity of the veteran's PTSD includes VA outpatient
treatment records and examination reports. VA outpatient
treatment records reflect that the veteran has received
individual counseling at the Vet Center.
The reports of VA outpatient treatment dated April 1999
indicate that the veteran came to the VA emergency room for
help in dealing with his stress. The examiner reported that
the veteran complained of having a host of problems for many
years, and of self-medicating with alcohol until he went into
detoxification some 5 years ago. The veteran reported that,
since that time, he has had an increase in his symptoms,
which include anger, depression, rage, anxiety, and sleep
problems. The examiner indicated that the veteran appeared
to be in good contact with reality. The examiner noted that
the veteran admitted to many symptoms that appeared to be
those of PTSD, and that the veteran also expressed a great
deal of anger, though he denied any suicidal ideation or
plans. The examiner noted that the veteran appeared to be of
average intelligence, and seemed to have good insight and
judgment. The examiner's diagnosis was PTSD, and he
recommended that the veteran be seen at the Buffalo Vet
Center for follow up treatment. The veteran was prescribed
no medications at that time.
The veteran reported again to the ER in late April 1999, from
the Vet Center, with complaints of sleep disturbances,
nightmares, and anger. The veteran indicated that he had
refrained from alcohol use for 5 years, but still had
feelings of depression. The veteran was not homicidal or
suicidal. The examiner at that time started the veteran on
medication to promote sleep and relieve the veteran's
nightmares.
The veteran's wife submitted a statement dated June 1999. In
that statement, the veteran's wife indicated that, for the
first 16 years of their marriage, she lived with the
veteran's alcoholism and dependence, his defensive behavior,
and his thoughts that everyone is out to get him. She
indicated that the veteran would try to not get close to
anyone, and would only like or love people from a distance
for fear of losing that person. She reported that the
veteran was still a loner, but that he did not want to be
alone. She reported that, even after 6 years of sobriety,
the veteran tended to think that everyone was out to hurt
him. The veteran's wife reported that the veteran tossed and
turned all night, and that she could not be near him to wake
him because he would swing his arms while sleeping to defend
himself. She indicated that the veteran suffers from
insecurity, and that he strives for perfection with
everything he does, and that this was a life obsession. The
veteran's wife reported that the veteran had a hard time
trusting people. She reported that the veteran would only
talk about Vietnam if something on a TV program moved him.
She reported he would then get very mellow and would start to
tear up, but would never cry.
The veteran himself submitted a statement in June 1999, in
which he described the incident which took place in Vietnam,
when he was hit by shrapnel from a grenade, and suffered head
injuries. The Board notes that the veteran is service
connected for several disabilities the veteran suffered as a
result of this incident.
A further statement from June 1999 from the veteran describes
other stressful incidents the veteran witnessed while in
Vietnam. Specifically, the veteran mentions an incident in
which he had to threaten to kill another solider, and another
incident in which he witnessed another soldier lose his legs
and one arm to a grenade.
The veteran was given a VA social work survey and a PTSD
examination in June 1999. The veteran's social work survey
detailed the veteran's military and post-military history.
The veteran reported being married for 22 years. He stated
that things have been stressful in that relationship for many
years, due to his drinking. The veteran indicated that he
had been sober for 5 years. The veteran reported that his
relationship with his wife and daughter had improved
immensely since he became sober. The veteran indicated that
he has socialized over the years, and that when he becomes
angry, he tends to overreact to situations. The veteran
stated that this has been an observable change for him since
his return from Vietnam. The veteran indicated that he had
been in counseling for the past one and a half months at the
Mental Hygiene Clinic, and was presently on medication to
help him sleep, which he reported was very helpful.
The veteran reported that he has episodic dreams and
recurring thoughts of Vietnam which he experiences one or
more times a week. The veteran reported that he thinks
about Vietnam on almost a daily basis, but he is still able
to carry on with his responsibilities and these thoughts do
not interfere with tasks at hand. The veteran has been able
to previously hold gainful employment for the past 29 years,
and also has worked another full time job since his
retirement. His symptoms never seem to interfere with his
job responsibilities. The social worker indicated that the
veteran only recently applied for treatment at the Mental
Health clinic, and that this treatment appeared to be very
helpful to the veteran. The veteran's recalling of Vietnam
experiences and episodic recurring dreams continues on a
fairly regular basis, but the veteran appeared to be able to
cope with that fairly well. The social worker felt that the
veteran does exhibit some symptomatology of PTSD.
As for the veteran's PTSD examination, the veteran related
some past history, including the fact that he and his wife
had adopted a daughter who is now 18 years old, to whom the
veteran is very emotionally attached. The veteran reported
being a heavy drinker until 5 years ago, when he stopped
because he believed that his drinking was affecting his
marriage and his relationship with his daughter. The veteran
reported owning one shotgun until his wife made him get rid
of it. The veteran indicated that he has never attempted
suicide, though he has contemplated doing it a few times.
The veteran reported being in frequent fights after his
return from Vietnam. The veteran is currently being seen in
weekly counseling sessions, which the veteran finds helpful
in that he can discuss emotionally powerful feelings from
Vietnam with his counselor, and can ventilate during those
sessions. At present, the veteran reported working at the
post office for the past 2 years, at first as a mail carrier,
and later as a custodian. Prior to that time, he worked in
construction for 29 years.
The veteran indicated during the course of the examination
that he wanted to start "winding down". He reported that
he went to the emergency room in April 1999 because he was
bothered by anger, anxiety, depression, and sleep problems.
The veteran admitted that his wife had been afraid of him in
the past, when he awoke from a nightmare to find himself
holding her by the neck. The veteran indicated that he
wanted to live the last 25 years of his life differently from
how he had been living since he served in combat in Vietnam.
The veteran then went on to report several stressful
incidents that happened to him in Vietnam, including those
listed previously.
The veteran indicated that he has never been admitted to an
acute psychiatric hospital unit. Also, he has never
attempted suicide. The veteran indicated that he would
continue to be seen at the Buffalo VA Mental Health Clinic,
as well as the Buffalo Vet's Center.
On examination, the veteran was found to be a medium framed
man who appeared 5 years younger than his stated age. The
veteran had a mustache, and was casually dressed. He was
adequately groomed, and was cooperative with the examiner.
The veteran was found to be alert and oriented to person,
place, and time. The veteran showed no obvious psychomotor
retardation or agitation. His speech was spontaneous and of
adequate volume. The veteran's affect appeared to be
constricted for the most part, and he was not tearful
throughout the interview. The veteran's thought conduct
centers on the difficulties he has had over the past 30 years
since he has been out of Vietnam, and he wants to change the
next 25 years of his life. The veteran showed no delusional
features. His thought processes were coherent. The veteran
did not appear to be responding to any internal stimuli. The
veteran appeared to be of perhaps average intellectual
endowment. The veteran's insight into his condition appeared
to be limited. The veteran's judgment appeared to be
marginal, as he apparently has had trouble controlling his
aggressive behavior over the years. The veteran was
diagnosed with chronic severe PTSD, and alcohol dependence in
remission. The examiner indicated that the veteran's alcohol
problems appeared to be secondary to his primary PTSD
condition due to his combat traumatic experiences in Vietnam.
The veteran was found to have ongoing stressors of ongoing
PTSD symptomatology, and a Global Assessment of Functioning
(GAF) score of 48.
Records indicate that the veteran was seen many times for
counseling in April through July of 1999, with complaints of
irritability, anxiety, compulsiveness, sleep disturbances,
and moodiness. The veteran talked about his experiences in
Vietnam during many of these counseling sessions.
Also of record is a Vet Center Intake form dated June 1999.
That form indicates that the veteran had been recently
complaining of an increase in sleep disturbances and
nightmares concerning his Vietnam combat, and ongoing
feelings of anxiety and irritability with problems managing
his anger explosions verbally. Upon mental status
evaluation, the veteran was found to have a neat appearance,
a friendly cooperative manner, average intelligence,
appropriate speech, was oriented to person, place and time,
had an appropriate affect, was agitated and restless, and had
fair judgment. The veteran was found to have no delusions,
no disorganized thinking, and no hallucinations. The veteran
indicated that he had an average appetite. He reported some
sleep disturbance, but that his sex drive remained the same.
He reported a high energy level. He indicated his father had
died 3 years ago, and that he had recently lost an "airborne
buddy." The veteran denied any suicidal or homicidal
thoughts.
The veteran reported that he thought he was right all the
time, and would get angry when he did not get his way. The
veteran reported that he had dreams of Vietnam sometimes only
monthly, and sometimes weekly. Daily recollections of
Vietnam were triggered by his reflection in the mirror, and
other veterans at work. The veteran denied having any
flashbacks. The veteran reported being hypervigilant. The
maximum amount of sleep the veteran reported being able to
get at any one time was about 4 hours. He had frequent
awakenings, with difficulty falling asleep except when
exhausted. The veteran reported difficulty in concentrating
to read. The veteran reported watching war movies not
related to Vietnam. The veteran reported having only limited
recreational activities. The veteran reported having some
emotional numbing. The veteran reported having some sense of
doom, but no survivor's guilt.
The veteran then reported some of his pre-military and
developmental history, and his military history, including
those traumatic events he witnessed, and those in which he
was injured. The veteran also reported his post military
history, as noted above, specifically, his drinking, and his
cessation of drinking in 1993. The veteran reported that his
wife and daughter are patient and easy going, while he is
not.
The veteran reported concerns with irritability, distrust,
hypervigilance, and numbing. The assessor found that the
veteran's most prominent PTSD symptoms were physiological
reactivity, hypervigilance, irritability, exaggerated startle
response, emotional numbing, intrusive recollections,
difficulty concentrating, and moderate sleep disturbances.
The veteran appeared to be comfortable disclosing some of his
combat experiences, and was receptive to feedback. The
veteran was found to have a strong motivation to manage his
anger and stress more effectively. His insight and judgment
were found to be fair. The veteran's commitment to abstain
from alcohol was found to be strong, and he was found to be
willing to try antidepressant medications. The assessor
found the veteran to be suffering from moderately severe
PTSD.
Analysis
The veteran and his representative contend, in substance,
that an evaluation higher than the 30 percent evaluation
initially assigned following the grant of service connection
for PTSD disability is warranted.
As a preliminary matter, the Board finds that all relevant
evidence has been properly developed and that no further
assistance to the veteran is required in order to comply with
the duty to assist. In this regard, the Board notes that the
veteran has undergone examination in connection with his
claim and relevant treatment records have been obtained. See
Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475,
114 Stat. 2096 (2000) (to be codified at 38 U.S.C. §§ 5102,
5103, 5103A, and 5107).
The Board notes that Court has emphasized that there is a
distinction between a claim based on the veteran's
dissatisfaction with the initial rating (a claim for an
original rating) and a claim for an increased rating. In the
case of an initial rating, separate ratings can be assigned
for separate periods of time based on the facts found, a
practice known as "staged rating." Fenderson, 12 Vet. App.
at 126 (1999). While, at the outset, the Board acknowledges
that the RO has not explicitly considered whether staged
rating is appropriate in this case, the Board finds that, for
the reasons set forth below, a remand for the RO to
explicitly consider the claim in light of Fenderson is
unnecessary.
Disability evaluations are determined by comparing a
veteran's present symptomatology with criteria set forth in
the VA's Schedule for Rating Disabilities, which is based on
average impairment in earning capacity. See 38 U.S.C.A.
§ 1155 (West 1991); 38 C.F.R. Part 4. When a question arises
as to which of two ratings apply under a particular
diagnostic code, the higher evaluation is assigned if the
disability more closely approximates the criteria for the
higher rating; otherwise, the lower rating will be assigned.
See 38 C.F.R. § 4.7. After careful consideration of the
evidence, any reasonable doubt remaining is resolved in favor
of the veteran. See 38 C.F.R. § 4.3.
The veteran's PTSD is currently evaluated as 30 percent
disabling under 38 C.F.R. § 4.130, Diagnostic Code 9411
(2000), which contemplates occupational and social impairment
with occasional decrease in work efficiency and intermittent
periods of inability to perform occupational tasks (although
generally functioning satisfactorily, with routine behavior,
self-care, and conversation normal), due to such symptoms as:
depressed mood, anxiety, suspiciousness, panic attacks
(weekly or less often), chronic sleep impairment, or mild
memory loss (such as forgetting names, directions, and recent
events).
A 50 percent rating is appropriate where there is
occupational and social impairment with reduced reliability
and productivity due to such symptoms as flattened affect,
circumstantial, circumlocutory or stereotyped speech, panic
attacks more than once a week, difficulty in understanding
complex commands, impairment of short- and long-term memory
(e.g., retention of only highly learned material, forgetting
to complete tasks), impaired judgment, impaired abstract
thinking, disturbances of motivation and mood, difficulty in
establishing and maintaining effective work and social
relationships.
Assignment of a 70 percent evaluation is contemplated for
occupational and social impairment, with deficiencies in most
areas, such as work, school, family relations, judgment,
thinking, or mood, due to such symptoms as: suicidal
ideation; obsessional rituals which interfere with routine
activities; speech intermittently illogical, obscure, or
irrelevant; near-continuous panic or depression affecting the
ability to function independently, appropriately, and
effectively; impaired impulse control (such as unprovoked
irritability with periods of violence); spatial
disorientation; neglect of personal appearance and hygiene;
difficulty in adapting to stressful circumstances (including
work or a work-like setting); and inability to establish and
maintain effective relationships.
Assignment of a 100 percent evaluation is contemplated where
there is a showing of total occupational and social
impairment, due to such symptoms as: gross impairment in
thought process or communication; persistent delusions or
hallucinations; grossly inappropriate behavior; persistent
danger of hurting oneself or others; intermittent inability
to perform activities of daily living (including maintenance
of minimal personal hygiene); disorientation to time or
place; and memory loss for names of close relatives, own
occupation, or own name.
After careful review of the evidence in light of the
applicable criteria, cited to above, and resolving all doubt
in the veteran's favor, the Board finds that the evidence of
record supports the veteran's claim for an increased rating
for his PTSD. The evidence clearly indicates that the
veteran has been found to have a constricted, that is,
flattened, affect, emotional numbing, impaired judgment,
aggressive behavior, irritability, and was placed on
medication to promote sleep and relieve his nightmares.
Though the veteran himself indicated in a June 1999 social
work survey examination that he did not feel his symptoms
interfered with his job responsibilities, the veteran was
found during his PTSD examination of June 1999 to have a GAF
Score of 48, which, according to the Fourth Edition of the
American Psychiatric Association's Diagnostic and Statistical
Manual of Mental Disorders (DSM-IV), is indicative of serious
symptoms or serious impairment in social, occupational, or
school functioning. Thus, under the circumstances of this
case, the Board finds that, since the February 1999 effective
date of the grant of service connection, the veteran's PTSD
has more nearly approximated the criteria for a 50 percent
evaluation for that disorder. See 38 C.F.R. § 4.7 (2000).
The Board has considered whether the veteran should receive a
70 or 100 percent rating for his PTSD. However, the evidence
does not show that the veteran suffers from occupational and
social impairment, with deficiencies in most areas, such as
work, school, family relations, judgment, thinking, or mood,
due to such symptoms as: suicidal ideation; obsessional
rituals which interfere with routine activities; speech
intermittently illogical, obscure, or irrelevant; near-
continuous panic or depression affecting the ability to
function independently, appropriately, and effectively;
impaired impulse control (such as unprovoked irritability
with periods of violence); spatial disorientation; neglect of
personal appearance and hygiene; difficulty in adapting to
stressful circumstances (including work or a work-like
setting); and inability to establish and maintain effective
relationships, such that a 70 percent rating is warranted
Further, the evidence does not show that the veteran suffers
from total occupational and social impairment, due to such
symptoms as: gross impairment in thought process or
communication; persistent delusions or hallucinations;
grossly inappropriate behavior; persistent danger of hurting
oneself or others; intermittent inability to perform
activities of daily living (including maintenance of minimal
personal hygiene); disorientation to time or place; and
memory loss for names of close relatives, own occupation, or
own name, such that a 100 percent rating is warranted. It is
noted that the veteran has been shown to speak coherently and
logically, has denied any thought disorder, and has been
cognitively oriented. As indicated above, during his June
1999 examination, the veteran indicated that he had, at one
point, contemplated suicide; however, no other medical
evidence reflects claims of suicidal or homicidal thoughts,
and there is no indication of current suicidal or homicidal
ideation. The Board also notes that the veteran has
maintained several effective social relationships,
particularly with his spouse and daughter, and has maintained
employment, both as a construction worker for 29 years, and
at the post office for an additional 2 years after his
retirement from construction work. He has also maintained
appropriate hygiene.
Hence, the Board finds that the veteran's level of PTSD
warrants a 50 percent, but no higher, evaluation. There is
no indication that the schedular criteria are inadequate to
evaluate the disability. See 38 C.F.R. § 3.321 (2000).
Moreover, inasmuch as the 50 percent evaluation reflects the
highest degree of impairment shown since the date of the
grant of service connection for PTSD, and the Board has
determined that such evaluation should be effective since
that time, there is no basis for a staged rating in the
present case.
ORDER
A 50 percent rating for PTSD is granted, subject to the laws
and regulations governing the payment of monetary benefits.
JACQUELINE E. MONROE
Member, Board of Veterans' Appeals